Wayne Graham Realty Ltd v Brook - [2016] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000022 [2016] NZHC 1135

BETWEEN
WAYNE GRAHAM REALTY LIMITED

Appellant

AND

KRISTINA-LORRAINE BROOK Respondent

Hearing: 18 May 2016

Appearances:

M E Parker for Appellant
D Tobin for Respondent

Judgment:

27 May 2016

JUDGMENT OF DUNNINGHAM J

[1] This is an appeal of a District Court costs decision awarding 2B costs to the appellant. The key complaint by the appellant is that the decision was made peremptorily, without a proper opportunity to provide the Court with further evidence and submissions to support the appellant’s claim that increased or indemnity costs should be awarded.

[2] The respondent says, however, the appellant could have anticipated that costs would be dealt with on the date in question and should have prepared accordingly. In any event, the decision made by the Judge was one he was entitled to reach in the exercise of his discretion and the appellant cannot demonstrate that the exercise of
his discretion was plainly wrong.

WAYNE GRAHAM REALTY LIMITED v BROOK [2016] NZHC 1135 [27 May 2016]

[3] The issues to be determined are therefore:

(a) whether the Judge erred in his determination of costs in the sense of acting on a wrong principle, failing to take into account a relevant matter or taking into account an irrelevant one;1 and

(b) if he was in error, whether the appellant’s claim for increased or

indemnity costs is warranted.

Background to the costs claim

[4] The proceedings concerned a purchase of a property by the respondent, Ms Brook. The appellant was the real estate agent in charge of the sale for the vendor. Ms Brook sued the vendor and the real estate agent.

[5] On the morning of 7 August 2015, the parties attended a judicial settlement conference. The matter did not settle at the conference. However, as is often the case, negotiations continued through the afternoon. Ms Cunninghame, the solicitor for the vendor, explains in her affidavit evidence that she telephoned Ms Brook’s lawyer and asked if her client would accept a joint offer of settlement from the defendants of $27,500. That offer eventually received a response “there is no movement from $30,000”, being the amount Ms Brook was requesting. Ms Cunninghame then responded by email saying “based on the earlier position taken by [the real estate agent] … we will be able to get to a joint settlement offer of
$30,000. This will be in full and final settlement of all matters between the parties”. Ms Brook’s lawyer responded by email saying “I have verbal confirmation that my client will accept this offer of $30,000 in full and final settlement between the parties”, and “will sort details on Monday”.

[6] Ms Cunninghame subsequently advised the real estate agent’s lawyer that the

matter had settled. Furthermore, Ms Brook’s lawyer advised the Court on

10 August 2015 that “agreement has been reached” and Registry staff recorded that

either a notice of discontinuance would be filed or it would be deemed to be discontinued on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wayne Graham Realty Ltd v Brook

Details

AGLC: Wayne Graham Realty Ltd v Brook [2016] NZHC 1135
Case: [2016] NZHC 1135
Decision Date: 27 May 2016

CaseChat Overview and Summary

Wayne Graham Realty Limited (the appellant) appeals against a decision of the District Court awarding 2B costs to the respondent, Kristina-Lorraine Brook (the respondent). The appeal raises issues as to whether the District Court Judge erred in his determination of costs, and if so, whether the appellant's claim for increased or indemnity costs is warranted. The appellant argued that the District Court Judge did not allow the appellant an opportunity to submit on the issue of costs, refused to hear arguments on the basis upon which costs should be awarded, awarded standard costs in favour of the appellant rather than the order for indemnity or increased costs as sought, and failed to provide reasons for his decision. The respondent argued that the appellant was not denied the opportunity to be heard in relation to costs, and that the reasons given were appropriate as the costs order made by the Court did not represent a departure from the norm. The Court held that the District Court Judge did not allow the appellant a meaningful opportunity to present its evidence and argument on costs and this was a breach of natural justice. The Court also found that the Judge was not required to give reasons for the cost decision in his judgment. The Court held that the appellant's claim for increased costs was warranted because the respondent had a demonstrable failure to act reasonably. The appeal is allowed, and the appellant is entitled to 2B costs on steps taken after 7 August 2015, with a 100 per cent uplift, plus disbursements. The Court reserved the issue of costs on the appeal should the parties not be able to reach agreement.

Orders